This blog has been up and running long enough such that certain themes have cropped up several times.  Or to put it more bluntly, we occasionally repeat ourselves.  Well, we hope it is not mere repetition.  Call it elaboration.  New things are continually developing with respect to TwIqbal, preemption, Daubert, and other rules, doctrines, and defenses.  Naturally, some of our bloggers have personal favorites.  At least one of us likes to draw parallels from the food cases.  Another hates the notion of all parallels, especially the parallel claim exception.  Another eagerly reports on the Aredia-Zometa saga.  Nobody here exactly relishes discussing e-discovery, but it is sufficiently important that we often need to keep up with the latest tragicomedy in that squalid area of the law.  At least those are all clearly legal topics.

The fact that we have seized several opportunities to moon over It’s a Wonderful Life is a little tougher to explain. Or maybe it isn’t tough at all.  We have a weakness for “sentimental hogwash.” When we were kids, the movie was on just about every day in December. Because the copyright hadn’t been renewed, local tv channels could show it for free.  Now that some lawyers have cleverly reassembled the copyright by cobbling together the underlying story and music from which the movie was derived, It’s a Wonderful Life gets broadcast only once or twice on NBC. Pity. (And it was bumped last weekend by a reshowing of the new version of The Sound of Music.  Double pity.) But for those of us of a certain age, the movie is in our marrow.  Maybe Gen-X-ers will feel that way about A Christmas Story, which annually gets the 24-hour marathon treatment.

This year we have fully earned the right to digress upon It’s a Wonderful Life, for we finally achieved our goal of attending the It’s a Wonderful Life festival in Seneca Falls, N.Y.  (First Blobfest, then a sojourn to the real Bedford Falls – what a year for our cinematic bucket list.  Now if only there was a festival with reenactments of The Godfather.  The food would be better than the festivals for those other classic films,  Then again, we’re not sure we want to bump into somebody imitating Luca Brazzi.) Seneca Falls is probably most famous for hosting the Woman’s Rights convention in 1848.  That convention was provoked by the visit of another, rather more accomplished and famous Philadelphian to Seneca Falls: Lucretia Mott.  Elizabeth Cady Stanton was the chief organizer.  It was an important, influential first step, though the attainment of women’s suffrage would have to wait for many years.  The National Women’s Hall of Fame is on the main drag, just across the street from a neat store called Women Made Products.

Seneca Falls is not too far from Rochester, Buffalo, and Elmira – all places mentioned in It’s a Wonderful Life.  The town sits next to a canal that connects Seneca and Cayuga lakes.  There is a bridge over the canal that looks just like the bridge in the movie.  In real life, a man actually did jump off that bridge to save someone in the early part of the 20th Century.  That man lost his own life, and his act of heroism is memorialized on a plaque on the bridge.  Interestingly, in the story that is the basis for It’s a Wonderful Life, “The Greatest Gift,” by Philip Van Doren Stern, the hero only ponders jumping off the bridge, but does not do it.  Local legend has it that Frank Capra had to cross over that bridge while traveling between New York City and his aunt’s house in Auburn, and the plaque inspired him to tinker with the script.

Seneca Falls no longer has any waterfalls.  Nevertheless, the name still fits, at least by our lights, because it was so icy and slippery there that the footing throughout the lovely old town was persistently treacherous.  Still, if the weather was frightful, the folks in the town were uniformly delightful.  Everyone was relentlessly friendly.  (Okay – except for the guy who pretended to be Mr. Potter.)  The actresses who played Zuzu and Janie, the Bailey daughters, in the movie were at the festival.  They were generous and effervescent.  They signed autographs, told stories, and seemed to relish their participation in a piece of pop culture that has brought so much joy to so many.  Also present was Donna Reed’s daughter, Mary Owens, who delivered the shattering news that Jimmy Stewart for a long time blamed  Donna Reed for the film’s initial lack of success, and for that reason never made another movie with her.  Everyone in the audience at the festival gasped.  We couldn’t imagine anyone but Donna Reed in the role of Mary Hatch.  Ginger Rogers and Jean Arthur, as well as some others, had been offered the role.  But none would have been nearly so good.  Capra once explained that for the role of Mary Hatch he needed an actress who was beautiful and strong, and who also looked like she would fall in love with only one man ever.  Think of the telephone scene, where George finally realizes that the future holds him always holding Mary.  But now the story from Mary Owens left us astonished and a little bit disillusioned.  It’s time to rewrite that picture Mary Hatch drew:  George Bailey lassos mean-spiritedness.

You might be surprised at how many legal issues lurk in It’s a Wonderful Life. We have already mentioned its strange intellectual property history.  That issue is surfacing again, as Paramount Pictures has announced its intention to put the kibosh on a group’s plans to create a sequel (with Karolyn Grimes, the actress who played Zuzu). Moreover, we and others on the blawgosphere have pondered some legal issues that the filmmakers elided over, such as George Bailey’s lingering liability for defalcation from his financial institution no matter whether or not his friends managed to donate enough money to make up the shortfall.  Further, George Bailey has an annoying habit of covering up for people whose incompetence could cost people their livelihoods or even their lives.  The failure to fire that forgetful souse Uncle Billy is undeniably a breach of fiduciary duty. And would the people of Bedford Falls sleep more easily if they knew that their pharmacist, Mr. Gower, was capable of mistakenly slipping poison into a prescription?

Eventually, reluctantly, this post has to get to some law.  This week we have an unusual example. It is a criminal case called U.S. v. Williams, 2013 U.S. App. LEXIS 24695 (10th Cir. Dec. 12, 2013).  The criminal defendant was appealing from his conviction for misbranding drugs  He had been sentenced to 37 months in prison.  The case made us think about Mr. Gower.  Is that because in the alternate reality section of It’s a Wonderful Life, Mr. Gower is a jailbird?  No, it is because we are forced to think of how much the pharmacy business has changed over the years.  Back in Mr. Gower’s day, pharmacies would deliver prescriptions to your house.  But for many years, that service became as rare and quaint as deliveries of bottled milk – or doctor house calls.  Now, of course, there is the internet.  Not only will Amazon deliver books to you, Zappos will deliver shoes, Classic Arms will deliver World War 2 Russian Mosin Nagants, and the Tire Rack will deliver … care to guess?, but it is now possible to get prescription drugs delivered to your front door.  Delivery of drugs is tricky from a number of angles, and the Williams case sheds a light on some of them.  For years, people have been ordering drugs from other countries, with varying levels of legality and safety and efficacy.  Williams involves the interesting issue of a pharmacy based in something that is sort of like and sort of unlike a foreign country:  an Indian reservation.  The case also contains some issues of Indian law, which we cannot get into, but it is interesting to note that one of the tribes involved in this case was the Seneca Cayuga, who had long ago journeyed all the way from upstate New York to Oklahoma. There is a story there that we don’t know, and doubtless there is nothing Capra-esque about it.

Williams got into hot water with the Feds because of the particular way he set up the online pharmacy on an Indian reservation.   People could log onto a website and fill out a questionnaire.  A doctor in New Orleans would then prescribe drugs solely on the basis of the questionnaires. The doctor never examined or even met the patients. The issue was whether this arrangement conformed to federal regulations, or whether such regulations even applied.  The court had little difficulty announcing that the answer to the second question was yes.  Indian tribal immunity did not call off application of the federal rules on drugs and devices.  Nor did such tribal immunity bar the criminal prosecution.

Criminal liability in the Williams case turned on the curious notion of misbranding.   Since plaintiffs in our cases like to throw the misbranding accusation around loosely, this is a concept with which we have at least a passing acquaintance.  A drug is misbranded if it does not bear “adequate directions for use.” But prescription drugs are not safe except for use under the supervision of a medical practitioner.  Therefore, prescription drugs are presumptively misbranded. Now if you had not already heard that, you might think that is strange.  Not to worry.  Under FDA regulations, prescription drugs can avoid the misbranding prohibition if they are in the possession of a lawful clinic pharmacy and are dispensed by filling or refilling a prescription of a properly licensed medical practitioner.  So far so good.

But unfortunately for Mr. Williams, the Controlled Substances Act imposes additional requirements.  An online pharmacy must be licensed in each state from which and to which it delivers.  A license from an Indian tribe does not suffice.  Further, internet distribution of a drug by a person is unlawful unless that person is a registered person acting pursuant to a valid prescription.   Under 21 USC section 829(e)(2), a valid prescription is one issued by a practitioner who has conducted at least one in-person medical evaluation of the patient.   That did not happen here.  It turns out that Mr. Williams made it a little too easy for folks to get prescription drugs online.  Williams argued that the indictment had been constructively amended and that there were erroneous jury instructions.  But armed with the laws and regulations on misbranding, proper licensing of pharmacies, and what it takes to make a valid prescription, the Tenth Circuit affirmed the conviction.

While the misbranding word has shown up in some of our cases, we have not seen these other issues, such as what constitutes a valid prescription,  surface in our product liability cases.  And yet, one does not require a Capra-esque imagination to see how they might.  In any event, we had not seen this sort of discussion before in any case, product liability or no, civil or criminal, and there was just enough of a frail connection to our favorite movie that we thought it the right stuff for a light mid-December post.

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It was a long drive back from Seneca Falls.  The roads were slushy.  Trucks kicked up a gray spray.  The windshield wipers fought a losing battle.   We passed Finger Lakes wineries that were closed for the season.  The route was lined with sad, bare trees, full of abandoned bird nests.  We rolled on under a yawning indifferent sky.  Only toward the end of the trip did a comically huge full moon plant itself in the Heavens.  It was nice to think of the friends we had made all along the snowy streets of the real Bedford Falls.  And it was nice to think that even as we were headed back to work, we were headed back to friends.  Whatever else we might say about It’s a Wonderful Life, the reason we and millions of others keep returning to it is because we like what it says about the importance of friendship.  We count our readers as friends, and we are grateful for your support (ABA blawg 100 votes accepted though Dec. 20!), suggestions, and good humor.  Happy holidays.